Miller v. Facebook, Inc. et al

Filing 67

Reply to Opposition re 62 MOTION to Dismiss Second Amended Complaint filed byFacebook, Inc.. (Avalos, Julio) (Filed on 7/22/2010)

Miller v. Facebook, Inc. et al

Doc. 67

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL M. MILLER, Plaintiff, v. FACEBOOK, INC. and YAO WEI YEO, Defendants.

Case No. 5:10-CV-00264 (WHA) FACEBOOK INC.'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT Date: Time: Court: Judge: August 5, 2010 8:00 A.M. Courtroom 9, 19th Floor Honorable William Alsup

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Dockets.Justia.com

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I.

INTRODUCTION On May 27, 2010, the Court permitted Plaintiff to file a third and final complaint on the

condition that Plaintiff explain, "how and why the ChainRxn video game is an unlawful `copy' of plaintiff's copyright in Boomshine." Dkt. 56 at 13:16-17. Rather than complying with the Court's Order, Plaintiff instead filed a Second Amended Complaint ("SAC") that added a single paragraph containing nothing but conclusory statements and rank speculation as to how Defendant Yeo copied Boomshine. In his Opposition, Plaintiff now asks the Court to accept these speculative conclusions because Plaintiff's other allegations supposedly state a claim for direct infringement by providing more detail than a form complaint. But Plaintiff's arguments miss the mark. The Court directly ordered Plaintiff to supplement his complaint with factual allegations that would properly allege how Defendant Yeo copied Plaintiff's computer code. This, Plaintiff has failed to do. In addition, Plaintiff clings to the theory that Yeo infringed Plaintiff's copyright merely because the two games look alike. This theory is unavailing. First, Plaintiff has already conceded--and the Court itself already observed--that Plaintiff does not have a copyright in the "look and feel" of the Boomshine game. Thus, Plaintiff is precluded from asserting any rights relating to the visual aspects of Boomshine. Second, Plaintiff's assertion that Yeo must have copied Plaintiff's computer code because Boomshine and ChainRxn allegedly look similar is an unwarranted deduction of fact that the Court need not credit. Plaintiff offers no factual allegations in his SAC that Yeo actually saw Boomshine, nor does he adequately allege that Yeo somehow copied the Boomshine code even if he did see Plaintiff's game. Plaintiff therefore fails to state a claim of copyright infringement. Plaintiff's Opposition brief ("Opp. Br.") emphasizes what has become obvious throughout the course of this litigation: Plaintiff has no idea whether Yeo copied Plaintiff's game, much less how he did so. But because Yeo made the game available through Facebook, Plaintiff wants to drag Facebook through expensive, unnecessary and futile (without Yeo appearing in the action) discovery in the hopes of forcing a lucrative settlement. Plaintiff's newly-added allegations, however, do not comply with the Court's Order and, accordingly, the SAC does not satisfy basic
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pleading standards. Thus, Facebook respectfully requests that its Motion to Dismiss Plaintiff's SAC be GRANTED. II. BRIEF RECITATION OF RELEVANT FACTS On May 27, 2010, at a hearing on his motion for leave to file a third complaint in this matter, Plaintiff's counsel conceded that he did not know how Defendant Yeo had supposedly copied Boomshine's source code. See Dkt. 63-1 at 10:16-18. On May 28, 2010, the Court issued its Order granting Plaintiff leave to file a SAC, but required Plaintiff to explain "how and why the ChainRxn video game is an unlawful `copy' of plaintiff's copyright in Boomshine." Dkt. No. 56 at 13:16-17. The Court's Order "emphasize[d] that plaintiff's copyright appears to be limited to the source code rather than the audiovisual aspects of Boomshine." Id. at 7:7-8. This conclusion is supported by Plaintiff's own copyright registration for a computer "file," as well as Plaintiff's counsel's concession that Plaintiff "has a copyright on the code." Dkt. 63-1 at 10:3. The Court indicated this would be Plaintiff's final chance to amend his complaint, Dkt. 56. at 13:17-19, as well as ordered that Plaintiff serve Yeo by July 30, 2010. Id. at 13:1-3. Should Plaintiff miss this deadline, the Court ordered it would "take immediate action to dismiss the case." Id. On June 4, 2010, just days after the hearing, Plaintiff filed a SAC adding a new Paragraph 20 that purported to contain factual allegations detailing how Defendant Yeo had copied Boomshine's source code. On July 8, 2010, Plaintiff filed a "Proof of Service" claiming to confirm service of the summons and complaint on Defendant Yeo. Dkt. 65. According to that "Proof of Service," "Defendant Yeo was served by certified mail at 353 3rd Avenue, Suite 246, New York, NY 10010 effective July 8, 2010 Pursuant to Rule 4(c)(1), FRCP, and § 415.40 of the California Code (2009)." Id. According to the Declaration of Brian Hancock filed in support of Plaintiff's "Proof of Service," Plaintiff mailed the summons and complaint to "UPS Store 5865" in Manhattan. Dkt. 65-1 at 2:23. "On June 28, 2010, the Summons and Second Amended Complaint were delivered to that address and the certified mail receipt was signed by `Alex,' an employee of UPS Store 5865." Id at 3:3-4. Mr. Hancock attached to his declaration copies of the "track and

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confirm" information from the www.usps.gov website for this letter as well as a certified mail receipt bearing the signature, "Alex." Id., Exs. B-C. III. ANALYSIS A. Legal Standard

Plaintiff agrees with Facebook that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Opp. Br. at 8:15-19 (emphasis removed) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) ("Twombly"). Critically, in determining a motion to dismiss, the Court need not credit conclusory allegations, unwarranted deductions of fact, or unreasonable inferences. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) ; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (a complaint may not survive a motion to dismiss based only on "conclusory `factual content'"). B. Plaintiff Has Failed To State A Claim For Direct Copyright Infringement. 1. Plaintiff Has Failed To Comply with The Court's Order to Provide Allegations Sufficient To Establish That Defendant Yeo Accessed and Copied The Boomshine Source Code.

In its opening brief, Facebook attacked the adequacy of Plaintiff's newly-added Paragraph 20 on two fronts. First, Paragraph 20 fails to comply with the Court's May 28 Order requiring that Plaintiff explain "how and why the ChainRxn video game is an unlawful `copy' of plaintiff's copyright in Boomshine." Dkt. 56 at 13:16-17. Second, Paragraph 20 contains nothing but "conclusory allegations and unwarranted deductions of fact" that the Court must reject under Iqbal. See Iqbal, 1298 S. Ct. at 1949-50. In addition to being intrinsically conclusory and speculative, Facebook also pointed to the fact that just one week prior to filing the SAC, Plaintiff's counsel had not known how or even if Defendant Yeo had actually copied Boomshine. Dkt. 63-1 at 10:16-17. Due to the timing of the SAC -- and the fact that Plaintiff did not denote Paragraph 20 as one requiring "further investigation or discovery" pursuant to Rule 11(b)(3) --

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common sense dictates that Plaintiff merely made up the conclusions in Paragraph 20 in order to save his case. In response, Plaintiff argues that the allegations set forth in the SAC satisfy notice pleading standards and go beyond a form complaint. Plaintiff, however, ignores the fact that the Court specifically ordered Plaintiff to provide detailed factual allegations to explain how Defendant Yeo improperly copied Plaintiff's copyright in Boomshine. Plaintiff's unwarranted deductions of fact do not comply with the Court's May 28, 2010 Order or the pleadings standards set forth in Iqbal and Twombly.1 Plaintiff argues that his new allegations are sufficient because they are "based on the information Mr. Miller's [sic] acquired without the benefit of formal discovery ... and Mr. Miller's belief based on the knowledge he possesses as a highly-educated programmer of gaming applications." Opp. Br. at 10:3-6. But whatever knowledge Mr. Miller may possess of his own gaming experiences could not possibly translate into knowledge of Defendant Yeo's actions visą-vis the Boomshine game. And Plaintiff's argument that these allegations are based on evidence it will obtain through "formal discovery," id. at 11:19, is unavailing; federal law requires that all "factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed. R. Civ. P. 11(b)(3). None of the allegations in Paragraph 20 are identified as requiring further investigation or discovery. Plaintiff cites to Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010), for support. But Arista does not help Plaintiff. The Doe defendant in Arista sought to quash a subpoena seeking his or her personal identifying information. Id. at 113. According to Doe No. 3, the First Amendment granted Internet users a right to anonymity that could only be overcome "by a substantial and particularized showing" of copyright infringement. Id. 113-14.
1

Despite Plaintiff's assertion, the use of an approved template does not ensure that the substantive contents of a complaint will meet judicial muster. See, e.g., Halton Co. v. Streivor, Inc., No, C 10-00655, 2010 U.S. Dist. LEXIS 50649, at *7 (N.D. Cal. May 21, 2010) (Alsup, J.) (granting a motion to dismiss a patent infringement complaint that used Form 18 and noting that the use of a Rule 84 form is not a blanket "shield" to a motion to dismiss) (citing Bender v. LG Elecs. USA, Inc., Case No. C 09-02114 JF (PVT) 2010 U.S. Dist. LEXIS 33075, 2010 WL 889541 (N.D. Cal. Mar. 11, 2010)) -4FACEBOOK'S REPLY BRIEF ISO MOTION TO DISMISS SECOND AMENDED COMPLAINT 5:10-CV-00264 (WHA)

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Specifically, Doe No. 3 sought to convince the Second Circuit Court of Appeals that the presumption of anonymity could only be overcome by a complaint attaching an affidavit testifying to a litany of details relating to the allegedly infringed copyrights as well as the Doe defendant's actions. Id. at 114. The Arista court refused Defendant's invitation to create such a heightened pleading standard. The court found that the allegations in Plaintiff's complaint "made on information and belief" were "all of them supported by factual assertions" in an exhibit to the complaint that detailed each defendant's unique IP address and date of access to the illegal files. Id. at 121. Plaintiff presents the Court with nothing akin to the Arista complaint's various allegations made on "information and belief" that were supported by factual assertions detailing defendants' actions. Instead, Plaintiff offers up the allegations in Paragraph 20 are precisely the sort of "unwarranted deductions of fact" decried by the Supreme Court in Iqbal. 2. Plaintiff Should Not Be Permitted To Maintain An Action on Boomshine's "Look and Feel."

In his Opposition, Plaintiff also attempts to revive his claim that he has copyright protection for the visual elements (the "look and feel") of Boomshine. Plaintiff's registration, however, is only for the Boomshine computer "file," i.e., its source code, as both Plaintiff's counsel and the Court have previously observed. Dkt. 63-1 (Plaintiff's counsel admitting that Mr. Miller "has a copyright on the code") and Dkt. 56 at 7:7-8 ("this order emphasizes that plaintiff's copyright appears to be limited to the source code rather than the audiovisual elements of Boomshine."). Plaintiff also does not dispute that he did not deposit screenshots of the visual elements of Boomshine with the Copyright Office. See Dkt. 62 at 6:14-20 (citing 37 CFR 202.20(c)(2)(vii)(C)) ("Where the application to claim copyright in a computer program includes a specific claim in related computer screen displays, the deposit ... shall consist of: (1) Visual reproductions of the copyrightable expression in the form of printouts, photographs, or drawings."). Indeed, the records at the Copyright Office reveal that Plaintiff did not make this deposit. See Declaration of Julio C. Avalos In Support of Facebook's Reply Brief ("Avalos Decl."), Ex. A. To the contrary, in addition to depositing a copy of the Boomshine computer file,
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rather than depositing the requisite "printouts, photographs, or drawings," Plaintiff deposited excerpts from the Boomshine source code. Id.2 Accordingly, Plaintiff has not registered the visual elements of his game and is precluded from enforcing alleged rights on those elements in this litigation. See, e.g., Kema, Inc. v. Koperwhats, et al., 658 F. Supp. 2d 1022, (N.D. Cal. Sep. 10, 2009); Reed Elsevier, Inc. et al. v. Muchnick et al., 559 U.S. ___, Slip Op. No. 08-103 (2010) (affirming that registration of a copyright is necessary prior to instituting an action for infringement of that copyright). Plaintiff relies on Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir. 1989), to suggest that, because he owns a copyright in the Boomshine code, he automatically acquires copyright protection over the visual elements of his game. But Johnson Controls says no such thing. Rather, the Johnson Controls court merely stated that "[w]hether the non-literal components of a program, including the structure, sequence and organization and user interface, are protected depends on whether, on the particular facts of each case, the component in question qualifies as an expression of an idea or the idea itself." Id., citing Harper Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985) (emphasis added). Plaintiff has failed to allege any underlying facts to support a claim that the non-literal elements of his game (i.e., the look and feel) are protectible under the copyright laws. Even if his copyright extended to the visual elements of Boomshine, which it does not, Plaintiff has failed to provide any factual allegations supporting his claim that Defendant Yeo copied Boomshine's visual elements. Plaintiff has not alleged ­ and cannot allege ­ that Boomshine was the first and only chain reaction-type game available on the internet or elsewhere. Yet, he simply concludes that because he alleged a similarity between the visual elements of Boomshine and ChainRxn, the only plausible conclusion is that Yeo copied Boomshine. The leap is improper. See Twombly, 550 U.S. at 570 (finding that although one possible inference from Documents referenced in a complaint are properly attached to a Rule 12(b)(6) motion to dismiss to show that those documents do not support plaintiff's claim. See, e.g., Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002); see also Amparan v. Plaza Home Mortgage, Inc., Case No. C 07-4498 JF (RS) 2008 U.S. Dist. LEXIS 109148, at *5-6 (N.D. Cal. Dec. 17, 2008) (Fogel, J.) (considering document attached by defendant to its motion to dismiss even though plaintiff had made reference to it, but not attached it to her complaint).
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plaintiff's claims was an alleged conspiracy, an equally plausible inference was a legal, "natural, unilateral reaction" and that as such Plaintiffs had failed to state a cause of action for anticompetitive conspiracy); Iqbal, 129 S. Ct. 1937, at 1949-50 (holding that the court need not credit conclusory allegations, unwarranted deductions of fact, or unreasonable inferences). C. Plaintiff Has Not Properly Served Defendant Yeo.

In his Opposition brief, Plaintiff claims that "Yeo was effectively served with the SAC on July 8, 2010." Opp. Br. at 6:27-28. Substituted service on "Alex" at a UPS Store in New York City does not constitute proper service and does not comply with the Court's requirement that Plaintiff bring Yeo into this action by July 30, 2010. Very soon we will know whether Plaintiff has actually served Yeo and whether he appears. If he does not, Facebook intends to file a supplemental motion to dismiss based on Plaintiff's failure to properly serve Yeo. IV. CONCLUSION For the foregoing reasons, Facebook respectfully requests that the Court dismiss the Second Amended Complaint with prejudice based on Plaintiff's failure to comply with the Court's May 28, 2010 Order and the requisite pleading requirements. Dated: July 22, 2010 ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Julio C. Avalos Julio C. Avalos Attorneys for Defendant FACEBOOK, INC.

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